From The Magazine: A Pandemic Is The Perfect Time To Make An Estate Plan

May 20, 2020 - 7:59 AM

These aren’t normal times, you may have noticed, as you’ve scanned aisles at grocery stores completely bereft of paper products or cleaning supplies. The facility where you board your horse might be closed to all but essential personnel. If you keep horses at home, you’ve probably stockpiled some extra feed and are spraying down doorknobs and stall latches with disinfectant. Your farrier or veterinarian might be showing up wearing a mask.

Things are serious, and the coronavirus is likely to be a shadow hanging over our daily lives for months to come.

If, like most horse people, you’ve been trained (or learned through unfortunate experience) to prepare for the unexpected, your mind has probably already gone there: What if I get sick? Who will take care of the horses? What if I die? What will happen to them?

Although it shouldn’t necessarily take a global pandemic to spur these thoughts, here we are. And if you’re suddenly realizing how unprepared you are, you’re not alone. A study by Merrill Lynch published in 2019 found that only 55 percent of Americans age 55 or over have a will, and the percentages decrease for younger age groups.

But, legal experts say, it’s not too late to do something about it. In fact, now is the time to act precisely because things are so serious and uncertain.

“We don’t know how long this is going to last; we don’t know what’s going to happen,” said Joanne Belasco, an attorney specializing in equine law through her online law firm, Windhorse Legal. “We don’t have control over the virus, but we have control over [how we plan for our horses].”

2. DSC_1911 Mollie Bailey
One of the most important decisions you’ll make about your horse is who—whether it’s a trusted friend, a trainer, a barn owner or a family member—you want to be responsible for him when you die. Mollie Bailey Photo

There are many things that could be said here about our society’s reticence to talk candidly about death and dying and how that makes the process more difficult, but that’s not going to change anytime soon. So, yes, it’s hard to think about. Yes, the conversations that need to be had can feel weird and awkward.

But here’s the bright spot: Everything is weird right now. No one looks at you twice if you wrap a doggie-poop bag around your hand to pump gas. (They’re probably thinking, “Wow, that’s smart!”) So if you call up your neighbor right now to let her know where your important documents are, she’s not going to call 911 for a welfare check. She’s going to know exactly where you’re coming from, and she’ll probably tell you where her important documents are too.

You’ve got plans for all kinds of other emergencies for your horses, and this is no different; it’s part of your commitment to care for them properly, and you probably have an idea what you’d want.

“Even if I ask a 35-year-old, they have a very definitive idea of, well, of course, if I passed away I would want this to happen—everything should be sold, or this [item] should be given to this person, or take two years to find good homes [for my horses]; don’t do a fire sale,” said Catherine Eberl, a partner at the Hodgson Russ law firm in Buffalo, New York. “Those wishes will only be carried out if you put them in writing.”

In a time of uncertainty, worry and possibly grief, a well-thought-out plan for your horses can make things considerably less stressful for those left behind.

The Basics Of Estate Planning

First, a disclaimer: This article is not intended to provide legal advice, and you should always consult with an attorney licensed to practice in your state who is experienced in these matters. Laws vary considerably from state to state, so don’t assume that what worked for your friend in Rhode Island will work for you in Wyoming.

Just to be sure everyone’s on the same footing, here’s a short explanation of some of the most basic elements involved in making plans for your possessions after you’re gone.

“Estate planning” is the general term for planning what happens to your things when you die. The moniker unfortunately brings to mind a gated mansion property and makes it sound like this should only concern you if you’ve got considerable assets. But your “estate” is literally just “the things you own”—even if that’s just a car and a checking account without many zeroes in it.

Even if you consider your estate to be insubstantial, it’s still important to decide how you want it disbursed and to document that in writing. Generally speaking, that’s in the form of a will—a legal document that goes into effect upon your death and dictates where your assets will go. It also appoints a representative (usually known as an executor) to carry out your wishes. Wills can also establish guardians for your children and detail funeral arrangements.

Every will goes through a court process called probate after the person with the will dies, and it can take a fair bit of time for assets to be disbursed—as little as eight or nine months or upwards of several years if things are complicated or contested. This process is also a matter of public record; anyone can look up your will (of course, only after you are gone).

If you die without a will, state law dictates who among your survivors (spouse, parents, siblings, etc.) are entitled to your assets, and that can include some unwelcome surprises. For instance, some states treat half-siblings the same as full siblings.

Other than a will, the other common type of estate planning document is a trust. There are many different types of trusts, and we’ll talk about a specific kind useful for horse owners below. But for starters, it’s important to know that trusts are not just for people with a lot of money (i.e. establishing a “trust fund”); they can be useful for anyone.

The main difference between a will and a trust is that a trust goes into effect immediately when someone dies; it does not go through probate. That also means it’s private, not a public document. Instead of an executor, a trust has a trustee, who is responsible for making sure assets are disbursed as spelled out in the trust. Like wills, the law regarding trusts varies from state to state, so it’s smart to have any trust reviewed by an experienced trusts attorney in your state.

Finally, it’s important to note that, our feelings for our horses aside, in all 50 states they are legally considered property. So for the purposes of your estate, your horse and your car would be treated the same. You probably don’t have very strong feelings about what happens to your car after you’re gone; your horse is another matter entirely. If you spell out your wishes—in writing—you can dictate what should happen with your horse, but otherwise your horse is at the mercy of the courts and your heirs.

Picking The Person To Make The Right Decisions

When it comes to your horses, the first and most important question everyone needs to answer is a simple one: “Who?”

Who is the person—whether it’s a trusted friend, a trainer, a barn owner or a family member—you want to be responsible for your horse? Whether you’re choosing someone to take permanent ownership of the horse or just a temporary caretaker who is then responsible for placing a horse in a new home, it’s probably the most important decision you’ll make related to your horse’s welfare.

Although it’s tough to think about, it’s important—especially in our current climate of uncertainty—to make a decision about this and put it in writing.

“People tell me all the time, ‘I told Susie if something happens to me, my horse is hers,’ ” said Belasco. “And that’s great, except that’s not legally enforceable at all. Or, ‘We feel like our barn is a family, so if any of us gets sick, we’ll take care of their horse.’ Well, what if everybody gets sick? Or what if everybody’s lost their job, and they can’t afford to feed that horse? We think other people will jump in because we all love horses. But that doesn’t mean we can take care of somebody else’s horses along with the ones we have.”

3. SueSmith.RoughCoatPhotography
Sue Smith, executive director of CANTER Pennsylvania, has had a will outlining her wishes for her horses for 20 years. “My greatest fear would be if something happened to me, and there weren’t any options for my horses, and they were sent to New Holland or some sort of auction as a way to downsize,” she said. Rough Coat Photography Photo

The act of selecting and designating a person is important, but so is the actual person you choose.

“Obviously you want someone who’s going to be responsible and trustworthy and also knowledgeable about what needs to be done,” said Eberl. “But also [someone] who’s going to carry out your wishes too. You may have a child that you trust, but you also think that child’s going to dispose of everything in a fire sale and not do exactly what you would have wanted to do. They’re trustworthy; they’re not going to steal money or anything. But they’re not going to exactly carry out your wishes.”

Normally the executor (in the case of a will) or trustee (in the case of a trust) would be responsible for disbursing assets, and they certainly can be the person who decides where a horse will go. But many people designate a different person to be responsible for this rather specialized and sensitive job.

It’s important to note that you can, and should, set up a succession of people to serve in this capacity. For example, if you’re married, you may designate your spouse. But there would be another person (or even another two or three people) named to take his or her place as executor or trustee in case both you and your spouse contracted the coronavirus and died.

Sue Smith, executive director of CANTER Pennsylvania, has had a will outlining her wishes for her horses since she moved out of her parents’ house in her 20s. Now in her 40s, she’s accumulated several retirees and other horses that would be difficult to place, so the decision of whom to designate to care for them became even more important.

“I think first, you’ve got to look at what your current herd is,” she said. “If you have a bunch of four-star horses, I don’t think this is quite as difficult of a task as if you have a bunch of backyard pets, essentially.”

Through her work in the Thoroughbred aftercare community, she’s too frequently seen what can go wrong when horses end up in bad situations, so her primary goal was ensuring none of her horses suffered that fate.

“If something happened to me, my estate plan would be to euthanize the ones that aren’t going to find safe placement or some sort of sanctuary,” she said. “But, even the sanctuaries, there are so few horses they can intake, and there’s no guarantee that sanctuaries are going to have the funding long-term, so I don’t really even consider that a great option.”

Knowing that euthanasia would be part of her plan, she selected a friend with similar beliefs—that a horse passing away peacefully is a better situation than giving them away and hoping for the best. “I’m fortunate: I have a lot of great friends and even family that I would trust,” she said. “It’s just I know it would be more of a burden for them, I think, in terms of the decision to have to euthanize.”

Smith’s estate plan sets aside funds to care for the horses and a stipend for the friend tasked with rehoming them, with instructions to find placement for the horses within a year. If homes cannot be found, the funds provided will cover euthanasia. Smith has her own farm, so she anticipates the horses could stay there with someone hired to care for them while placement is sought.

Smith discussed her horses in detail with her friend, noting the ones for whom she believed euthanasia would be the most humane option—like a 30-something-year-old mare who wouldn’t adapt well to being relocated. “The others that have value, if my friend wanted them or if she knew someone who wanted them or she wanted to sell them, that’s fine,” Smith said. “They have a value, and they’re going to be sought after.

“My greatest fear would be if something happened to me, and there weren’t any options for my horses, and they were sent to New Holland or some sort of auction as a way to downsize,” she continued. “That easily could happen to people if they don’t have anything lined up, and there isn’t going to be a good future for those horses. I don’t say it lightly, but I think that is part of being a responsible horse owner, putting the animal’s needs ahead of your own.”

4. DSC_4015Kat Netzler photo
If you board, make sure your barn owner has a current emergency contact person for you, someone they can call if they haven’t seen you in a week or two, and you’re not answering your phone. Kat Netzler Photo

Liz Arbittier, VMD, CVA, and an assistant professor in equine field service clinical studies at the University of Pennsylvania’s New Bolton Center, has both facilitated dispersal of someone’s horses after they die (transferring records to new owners or sometimes euthanizing when necessary) and been the recipient of horses that were left to her by a client.

“Horses are so much harder to place than small animals,” she said. “If the animals can’t be ridden, and you don’t have someone you trust implicitly, you have to leave written instructions on how you’d prefer them to find homes, and let people know that euthanasia is preferable to heading to an auction or a ‘dealer’ or someone who volunteers to help and sticks them in a pasture for the rest of their lives. It just doesn’t happen the vast majority of the time. I can’t stress that enough, and as a vet, I’ve been very honored to euthanize deceased clients’ animals knowing that I was fulfilling their trust in me and making sure their horses didn’t end up in a bad situation. 

“If the horses are young [and] rideable, it may be another story,” she continued. “Some rescues are happy to take horses like that to work with and then adopt out. Finding a reputable one near you and leaving those instructions is a great idea.”

Smith said groups like CANTER often see the confusion and even desperation family members face when an individual didn’t plan for or leave instructions for horses.

“We do talk to people who, a parent has passed away, and they have all these horses, and they don’t know what to do with them. We get the aftermath calls a lot, and it’s always hard,” she said. “Most of the time, particularly if it’s an older adult who passed away, they haven’t been doing anything with the horses, and they’re just sitting in the field. They aren’t really the kind of horse that people are looking for.”

Even if you own valuable horses, would you simply want them sold to anyone who showed up with a checkbook? Or would you want them to go to specific people or to a specific kind of home? If it’s the latter, those wishes need to be made clear to the person who has the power to make those decisions. If you don’t spell it out, it might not happen.

“The horses will belong to the estate, and any sale will have to go through the lawyers in terms of valuation, et cetera,” said Arbittier. “That could get hairy with valuable horses!

“I think that, at the end of the day, it’s all about finding someone you trust and having it in writing,” she added. “An athletic horse will have a much better chance of landing somewhere good than a pasture pet.”


This is part of a longer article that ran in the May 18 & 25, 2020,  issue of The Chronicle of the Horse in our Horse Care Issue. To learn much more about estate planning and caring for your horse after you die, please subscribe.

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